President's Proposed Remedy to Curb Medical Malpractice Lawsuits Stalls
Senate Deadlocks; Democrats Plan To Use Filibuster
By Jeffrey H. Birnbaum and John F. Harris
Washington Post Staff Writers
Sunday, April 3, 2005; Page A05
Almost everywhere President Bush traveled on the campaign trail last year, he lashed out at plaintiffs' lawyers for filing "junk lawsuits" that he said were sending the cost of health care out of sight.
These days the president rarely mentions the topic, and the effort in Congress to rein in medical malpractice litigation has stalled, according to proponents and opponents of the bill.
The troubles faced by his "med-mal" proposal may signal a turn in Bush's fortunes on domestic policy. In the first three months of the year, he scored large and comparatively easy victories on legislation to restrain class-action lawsuits and to revamp bankruptcy laws to make it harder for consumers to wipe out their debts -- both measures that had been long sought by business interests.
But those proposals represented what a senior Democratic Senate aide called "low-hanging fruit," easily picked by a newly reelected president. The medical malpractice legislation -- a more complex and more controversial idea -- is proving to be a longer reach.
"The Senate is deadlocked," said Lawrence E. Smarr, president of the Physician Insurers Association of America, one of dozens of health care groups that are working in coalition to promote Bush's plan. "They're at loggerheads on the basic bill."
"They don't have the votes, and they won't get the votes," said Jim Manley, spokesman for Senate Minority Leader Harry M. Reid (D-Nev.), a staunch adversary of the president's drive.
The difference between the class-action and medical malpractice bills illuminates the extent -- as well as the limits -- of Bush's influence. The class-action bill had lingered on the verge of passage for years, and it had some important Democratic backers. With the expanded Republican majority in this year's Senate, its enactment into law was virtually assured.
This convergence of factors does not exist for medical malpractice legislation. Although passage of the medical malpractice bill is seen by both sides as virtually assured in the House, Senate Democrats plan to block such legislation by using a filibuster, a procedural maneuver that prevents controversial bills from reaching an up-or-down vote. Republicans hold 55 seats in the Senate, five short of the 60 votes needed to stop a filibuster. In addition, a few Republicans, including Sen. Lindsey O. Graham (S.C.), do not support the measure.
Bush made clear in his State of the Union address on Feb. 2 that he considered limiting medical malpractice lawsuits an important goal for his second term, calling for "medical liability reform that will reduce health care costs and make sure patients have the doctors and care they need."
So far, however, there is no evidence that these exhortations have changed the legislative arithmetic for the idea. The Senate voted on several variations of the president's proposal last year but never mustered more than 49 votes to cut off debate. This year, even with four additional GOP votes in the Senate, lawmakers and lobbyists agree that any bill that fits the president's preferences would still fall short of passage.
"We are still seven or eight votes away in the Senate from getting that magical number 60," said Christian Shalgian, chief lobbyist for the American College of Surgeons and chairman of the Health Coalition on Liability and Access, the major lobbying coalition siding with Bush on medical malpractice issues.
Bush's proposal, which is modeled on a California law, would limit to $250,000 the amount a health provider could be required to pay a patient for "pain and suffering" beyond the actual cost of medical services provided. The measure would also provide for the payout of judgments over time rather than in a single lump sum, and ensure that old cases could not be brought to court years after the malpractice occurred.
White House spokesman Trent Duffy said that Bush is committed to passing such legislation. "It is one of the top priorities for the president; he campaigned vigorously on it," Duffy said. "He is going to push very hard."
But Senate Majority Leader Bill Frist (R-Tenn.), a vocal advocate for the proposal, has tacitly acknowledged that the legislation will have to be altered, perhaps significantly, if it is to succeed. Speaking to obstetricians and gynecologists at the Capitol recently, Frist said he would consider many kinds of changes in the original bill -- including breaking with Bush and seeking a higher cap on damages -- to end the impasse.
"We will consider all kinds of options," Frist said. He also urged Democrats to "come to the table."
Democrats, however, are not budging. "I would respectfully suggest that they [Republicans] don't want a deal on this issue," Manley said. Republican leaders have been unwilling to show flexibility on key points such as the cap on punitive damages, he added, which suggests that they want to use the issue more as a rallying cry for its interest groups rather than as a legislative achievement.
The deep-pocketed trial lawyers' lobby is mounting a major drive to prevent the bill from moving forward. The Association of Trial Lawyers of America (ATLA) has been raising millions of dollars to combat the medical malpractice proposal and has hired additional congressional lobbyists to keep the pressure on lawmakers to reject the president's plan.
Bush proponents "are holding a lot of the cards, so we will be vigilant throughout the year," said Linda Lipsen, ATLA's chief lobbyist. But, she added: "They're short of votes now."
Quick passage of the class-action bill, which Bush signed into law Feb. 18, was "both good and bad news," a senior business lobbyist said. It was good for industry that class-action legislation passed at all, he said, because it represented a small but meaningful victory over the hard-to-defeat plaintiffs' bar. But it was bad news, he added, because many lawmakers are loath to whack the powerful trial-lawyer lobby more than once in a single year.
Lawmakers' reluctance to attack trial lawyers also impedes Bush-supported efforts to restrain the flood of lawsuits against companies that once manufactured asbestos products. The president has urged Congress to slim the huge asbestos docket. But defendant companies and their insurers have remained unable to agree with unions and trial lawyers on a funding level and a few other key issues in a proposed asbestos trust fund. As a result, that Bush priority has also been laid aside.
The Senate has no plans to act anytime soon on the medical malpractice bill. A senior staff member on the Senate Judiciary Committee said the panel has been too immersed in the recent bankruptcy bill and trying to find a settlement on asbestos claims to expect movement on medical malpractice this month or next -- unless Frist intervenes to jump-start the issue.
Bob Stevenson, the majority leader's spokesman, did not dispute the uphill odds, but said the legislation remains a priority for Frist. "The majority leader clearly feels this is a crisis, affecting both the cost and access to health care."
Frist has made some efforts to reach out to Democrats, Stevenson said, but he declined to offer any details about potential bargains. "We have not found the mother lode, but we are finding some areas of common ground," he said.
There is reason to wonder how robust this outreach has been. Last year, Sen. Dianne Feinstein (Calif.) was one of the key Democrats who worked with Republicans in a failed effort to craft a compromise. So far this year, no Republicans have reached out to Feinstein to repeat that effort, said Howard Gantman, her communications director.
In the meantime, said Sherman Joyce, president of the Republican-leaning American Tort Reform Association, "The challenge of getting 60 votes in the Senate is going to be tough." |
